Dr. H.E. Shepherd, a civil service employee holding the position of a supervising veterinary meat inspector with the California Department of Agriculture, was dismissed in January of 1952 by the director of the department, and, after a hearing, the State Personnel Board approved the dismissal. In this mandamus proceeding, the superior court, after determining that some of the findings and conclusions of the board were warranted but that others were not, entered judgment ordering the board to set aside its decision and to reconsider the penalty imposed. Both Shepherd and the board have appealed.
For the most part, Shepherd's official duties consisted of reviewing, correcting and passing upon plans for the remodeling or construction of meat slaughtering and processing plants to assure that they satisfied California sanitary and building requirements. In that connection, he assisted architects and contractors in preparing such plans and visited construction projects to see that they met state standards. His duties also included supervising the work of state veterinary meat inspectors, surveying meat plants to determine whether their operating methods met state requirements, recommending changes in such establishments, compiling records, and reporting to the central office.
It was shown at the administrative hearing that on four occasions Shepherd received compensation from private parties for preparing plans to be used in the construction or remodeling of meat plants. The first of these transactions occurred in 1946 and involved the People's Meat Market in Calistoga, a slaughtering plant which was operated under California inspection service. Shepherd inspected the market, found that it did not comply with state sanitary standards, and reported this fact to his superiors. He advised the
Another of the transactions concerned the Grass Valley Meat Company, which was subject to California meat inspection service. In 1947, at the request of the company, Shepherd prepared remodeling plans outside of duty hours which, if adopted, would have qualified the plant for federal meat inspection service but would also have been suitable for state purposes. He was paid a total of $850 for this work. After the plans had been furnished, the company decided not to change from state to federal meat inspection service and asked Shepherd to prepare simpler plans which would meet California requirements. He drew a second set of plans in 1949 which were used in remodeling the plant, and, in the course of his duties, he inspected the work being done. During 1949 and 1950, 104 barrels of tallow belonging to Shepherd were stored by the company without charge. He removed the tallow after another inspector determined that it was creating an unsanitary condition at the plant.
With respect to the third transaction, it was shown that the Union Packing Company in Vernon, which was subject to federal meat inspection service but was contemplating applying for state service, made a request to one of Shepherd's superiors that Shepherd visit the plant to conduct an inspection and to discuss remodeling the premises. In September of 1949, Shepherd came to the plant, conferred with the manager, at least in part during duty hours, and took measurements the following weekend. The manager requested him to prepare remodeling plans, and he did so outside of duty hours. He supplied them to the company and received $500 in payment. The company did not use the plans and did not change from federal to state inspection.
The fourth transaction involved Shepherd's dealings in August and September of 1950 with the owner of a trailer manufacturing business in San Jose. The owner agreed with a meat company that he would convert his premises into a meat processing plant which would then be leased to the
In 1945, before any of the four transactions occurred, Shepherd submitted a letter to his superior in which he requested permission to work "on a fee basis" outside of duty hours as a consultant for architects, engineers and contractors with respect to the designing of meat plants. The permission which he sought was refused, and he was told that he was not to accept money from anyone for doing work in connection with his official duties and that receiving such a payment was incompatible with his job. In a bulletin which was issued by the Bureau of Meat Inspection on August 29, 1949, and which Shepherd read, veterinary meat inspectors were instructed that they were not to perform unofficial work for the operator of an establishment to which they were assigned. On two occasions in 1949, Shepherd was questioned by his superior as to whether he was receiving money from architects or contractors for drawing plans or doing other work, and he denied doing so.
The board, after making detailed findings substantially in accord with the facts set forth above, found that the following causes for discipline existed within the meaning of section 19572 of the Government Code
The superior court determined that there was substantial evidence to support the board's findings of failure of good behavior, "violation of Title 2, Division 5, Part 2, of the Government Code," and acts during and outside of duty hours which were incompatible with and inimical to the public service. It concluded, however, that none of Shepherd's acts constituted the other causes for discipline found by the board, that, because of an amendment to section 19251 of the Government Code which became effective on October 1, 1949, the findings of incompatible acts were improper insofar as they related to the period between that date and October 16, 1950, and that punitive action could not be based on the transaction involving the Union Packing Company.
A preliminary question is presented as to whether the court erred in failing to reweigh the evidence and exercise its independent judgment thereon.
As we have seen, Shepherd received payment on four occasions from present or prospective meat plant owners or their representatives for construction and remodeling plans which he prepared outside of duty hours.
With respect to the findings that Shepherd was guilty of acts which were incompatible with and inimical to the public service under subdivision (s) of section 19572 of the Government Code, we must determine the effect of the amendment of section 19251 of that code which became effective on October 1, 1949. Until that date, section 19251 merely prohibited state employees from engaging in incompatible activities. The section, as amended, provides in substance that a state officer or employee shall not engage in any activity which "has been determined" to be inconsistent, incompatible, or in conflict with his duties and that each appointing power "shall determine and prescribe," subject to approval of the board, those activities which will be considered inconsistent, incompatible, or in conflict with the duties of state officers or employees under his jurisdiction.
The record shows that Shepherd's activities in connection with the trailer manufacturing business in San Jose, as well as some of his conduct in the Union Packing Company transaction, occurred between October 1, 1949, and October 16, 1950.
The superior court upheld two findings of the board which, in our opinion, are fatally defective.
In summary, we have concluded that the board's findings of acts incompatible with and inimical to the public service under subdivision (s) of section 19572 are improper with respect to the period between October 1, 1949, and October 16, 1950, and that the findings of inexcusable neglect of duty, failure of good behavior, and "violation of Title 2, Division 5, Part 2, of the Government Code" are defective.
The judgment is reversed, and the superior court is directed to enter judgment instructing the State Personnel Board to set aside its decision and to determine the penalty to be imposed in the light of the foregoing opinion.
Shenk, J., Carter, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.
"(d) Inexcusable neglect of duty....
"(p) Wilful disobedience....
"(r) Violation of this part or board rule.
"(s) Any other failure of good behavior or acts either during or outside of duty hours which are incompatible with or inimical to the public service."
"Each appointing power shall determine and prescribe, subject to approval of the board, those activities which, for employees under his jurisdiction, will be considered inconsistent, incompatible or in conflict with their duties as state officers or employees. In making this determination the appointing power shall give consideration to employment, activity or enterprise which: (a) involves the use for private gain or advantage of state time, facilities, equipment and supplies; or the badge, uniform, prestige or influence of one's state office or employment or, (b) involves receipt or acceptance by the officer or employee of any money or other consideration from anyone other than the State for the performance of an act which the officer or employee, if not performing such act, would be required or expected to render in the regular course of hours of his state employment or as a part of his duties as a state officer or employee or, (c) involves the performance of an act in other than his capacity as a state officer or employee which act may later be subject directly or indirectly to the control, inspection, review, audit or enforcement by such officer or employee or the agency by which he is employed.
"Each state officer and employee shall during his hours of duty as a state officer or employee and subject to such other laws, rules or regulations as pertain thereto, devote his full time, attention and efforts to his state office or employment."
Prior to October 1, 1949, section 19251 of the Government Code read: "A State officer or employee shall not engage in any other activity or enterprise inconsistent, incompatible, or in conflict with his duties as a State officer or employee."